R (on the application of AAA (Syria) and others) v Secretary of State for the Home Department

An asylum seeker may be removed without substantive examination of the claim only if the receiving state offers an adequate asylum procedure which protects against direct and indirect refoulement. The court must decide for itself, from all the evidence, whether substantial grounds exist for believing that removal creates a real risk of prohibited ill-treatment.

Diplomatic assurances require practical, fact-sensitive evaluation. Government assessments are important but not conclusive. Past conduct, institutional capacity, compliance with comparable assurances, monitoring and authoritative evidence from UNHCR are material.

EU-derived asylum rights preserved by section 4 of the European Union (Withdrawal) Act 2018 ceased to be available where paragraph 6 of Schedule 1 to the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 applied.

The Secretary of State adopted a policy under paragraphs 345A–345D of the Immigration Rules to treat certain asylum claims as inadmissible and transfer the claimants to Rwanda for determination under the Migration and Economic Development Partnership. The claimants challenged Rwanda's designation as a safe third country and the related removal and certification decisions.

The Divisional Court rejected the general challenge but quashed some individual decisions for procedural defects: [2022] EWHC 3230 (Admin). The Court of Appeal, by a majority, held that deficiencies in Rwanda's asylum system created a real risk of refoulement and rendered the policy unlawful: [2023] EWCA Civ 745. It unanimously held that certification under paragraph 17 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc) Act 2004 was improper.

The Secretary of State appealed. ASM cross-appealed, contending that articles 25 and 27 of the Procedures Directive remained retained EU law and required a connection with the proposed third country.

1. The Secretary of State's appeal was dismissed unanimously. The Court of Appeal was entitled to interfere because the Divisional Court failed to engage properly with material UNHCR evidence and did not evaluate Rwanda's assurances against the evidence as a whole. Whether or not the Divisional Court had formulated the correct test, that evidential error justified a fresh assessment.

2. The applicable question was whether substantial grounds existed for believing that transfer to Rwanda would expose asylum seekers to a real risk of ill-treatment through direct or indirect refoulement. The court had to determine that question objectively for itself. The Government's assessment and diplomatic expertise carried weight, but the court was not confined to reviewing whether the Secretary of State's view was tenable and did not require compelling contrary evidence before examining it: paras 38–72.

3. Assurances were not sufficient merely because they were detailed and given in good faith. Their practical reliability required a fact-sensitive assessment of Rwanda's current institutions and practices, its history of refoulement, its compliance with comparable assurances, and the effectiveness and timing of monitoring. UNHCR's status, expertise and extensive operational experience in Rwanda gave its essentially uncontradicted evidence particular importance, although it was not automatically decisive: paras 44–70.

4. The evidence established substantial grounds for believing that asylum claims would not be determined properly and that genuine refugees would consequently face return to persecution. Material matters included systemic procedural defects, limited decision-making expertise, unexplained rejection patterns, misunderstanding of refugee law, recent refoulement, an untested appeal system, concerns about legal independence, and failures under the earlier Israel–Rwanda arrangement. Monitoring could detect later failures but could not prevent the immediate risk. Capacity could be developed, but the necessary structural and cultural changes had not been shown to exist at the relevant time: paras 73–105. The Rwanda policy was therefore unlawful.

5. ASM's cross-appeal was dismissed unanimously. Articles 25 and 27 of the Procedures Directive had initially been preserved by section 4 of the European Union (Withdrawal) Act 2018, but paragraph 6 of Schedule 1 to the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 removed EU-derived rights capable of affecting provisions under the Immigration Acts or immigration functions. “Immigration” naturally included asylum. External aids could not displace the clear statutory words, and the principle of legality did not apply to these EU-derived rights or permit disregard of Parliament's unambiguous intention: paras 107–148.

6. The court did not determine the additional cross-appeal grounds concerning a direct risk of ill-treatment in Rwanda or the degree of care required in considering refoulement, because the principal conclusion made them unnecessary: para 106.

1. United Kingdom Supreme Court: dismissed both the Secretary of State's appeal and ASM's cross-appeal; affirmed that the Rwanda policy was unlawful: [2023] UKSC 42 .
2. Court of Appeal: by a majority, reversed the Divisional Court on the general lawfulness challenge because a real risk of refoulement existed; unanimously held paragraph 17 certification improper: [2023] EWCA Civ 745 ; [2023] 1 WLR 3103 .
3. Divisional Court of the High Court: rejected the general challenge to the policy but quashed certain individual inadmissibility and removal decisions for procedural defects: [2022] EWHC 3230 (Admin) ; [2023] HRLR 4.